EXPLAINER | What the Supreme Court of Appeal judgment means for gun owners

(Photo: Getty/Gallo Images)
(Photo: Getty/Gallo Images)
  • The SCA in July set aside an interdict preventing police from demanding that gun owners, whose licences had expired, return their firearms to the state, 
  • This would mean that close to 450 000 gun owners can be pursued by police if they do not return their firearms. 
  • An interdict was first sought after police changed its policy to allow re-licencing even after it expired. 

The Supreme Court of Appeal (SCA) in July overruled an interdict preventing police from demanding that all gun owners, whose licences expired, surrender their firearms to the state.

This means that 436 366 gun owners, whose licences expired, have been stripped from the protection they had from being pursued by the SA Police Service. 

There are 1.7 million licensed firearm owners, who have firearms for self-defence and their licences have not expired. 

Gun Owners of SA (GOSA) said "the judgment - while scathing - is not the end of the road", but did not indicate how it plans to challenge the ruling. 

"Our legal team will report soon with an analysis of the judgment and our proposed route forward for expired licence holders," GOSA said in a statement. 

News24 looked at why GOSA wanted an interdict against police collecting firearms of licences which expired, what the SCA ruled, and what the impact will be on gun owners. 

Why did GOSA want an interdict against police collecting firearms? 

University of Western Cape Public Law and Jurisprudence lecturer Dr Windell Nortje explained that, in 2016, then SAPS commissioner Khomotso Phahlane demanded that all gun owners, whose firearm licences have expired, return their firearms.

"GOSA was aggrieved by this since for a number of years prior to this announcement gun owners were allowed to apply for a new licence even if their current licence was expired," Nortje told News24. 

He said the right to self-defence or private defence is a common law defence protected under the Constitution. 

GOSA, therefore, in July 2018 sought an urgent interdict to prevent SAPS from forcing gun owners to return their firearms if their licence has expired. 

Nortje said the organisation believed the application process is flawed, subjective and that the police admitted to not having the capacity to administer the application process.

"However, they also argued that the system of renewals should be abolished and that there should be a lifetime period of validity of firearms, an argument which the High Court rejected as well as the Supreme Court of Appeal," Nortje said.

University of Johannesburg's South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC) researcher Ropafadzo Maphosa said GOSA believed that ordinary citizens and security companies would be left defenceless if police continued. 

GOSA also argued that the resources of SAPS were better spent on operational duties, instead of "mountains of paperwork being created with no real benefit".

"By legally challenging SAPS, GOSA ensured that over 450 000 gun owners, whose licenses had expired, would not be required to surrender their firearms," Maphosa told News24. 

The High Court granted GOSA the interdict against the police's demand that firearms be returned, and the police minister and the police therefore appealed the ruling in the SCA.

What did the SCA rule? 

The SCA overturned the interdict, and ordered GOSA to pay legal costs. 

Maphosa said the court found that the interdict granted was constitutionally inappropriate as it would ultimately guarantee the unlawful possession of firearms. 

"The SCA emphasised the risk that some of the unlicensed firearms, which are now illegally in the possession of their owners, may be stolen or lost and end up in the hands of criminals who may injure or kill others," Maphosa said. 

"The court further stressed that gun ownership in South Africa is not a right but a privilege, and the interdict granted by the high court would infringe on the powers vested in the police force by the law, thereby inhibiting them from implementing and enforcing law." 

Nortje said the SCA found that the High Court violated the separation of powers doctrine as it instantly prohibited SAPS from accepting the surrendering of firearms in terms of the Firearms Act. 

"In other words, the judiciary intruded on the grounds of the executive (police)." 

He said the court found that there are 436 366 unlicensed firearms in the country and that there is a real risk that many of these firearms may end up in the hands of criminals. 

The SCA called the ruling by the High Court in granting the interdict, by amending some of the relief sought by GOSA, "unusual, troubling and regrettable". 

At the SCA, GOSA argued that the surrendering and destruction of firearms would put the state's security at risk. 

"However, GOSA did not submit a single affidavit proving the existence of these threats and risks. Its arguments were mainly based on hearsay and newspaper reports and no factual evidence was submitted," Nortje said. 

"The SCA held that gun owners, who refused or neglected to renew their licences, is of their own making and now bears the risk of being prosecuted for possessing an illegal firearm." 

What does the ruling by the SCA mean for gun owners?

Nortje said the order effectively means that a firearm licence comes to an end on the last day of its validity in terms of the Firearms Act.

"A new firearms amnesty is on the cards for the period between 1 August and 31 January 2021. Gun owners should [therefore] be encouraged by GOSA to hand in any unlicensed firearms," Nortje said. 

Nortje said although the right to defend yourself, others and your property is important, one must remember that gun ownership is not a fundamental human right under our Constitution, but should rather be viewed as a privilege in accordance with the Firearms Act. 

"It is therefore important for gun owners to be in possession of a valid firearms licence." 

It is understandable that many gun owners, who possess illegal firearms, are hesitant to return their firearms and feel that they might be a victim of future crime, he said. 

"However, it is recommended that they return their unlicensed firearms to SAPS.

"It is also important for SAPS to win back the trust of the society, establish a dedicated programme dealing with the return of unlicensed firearms and properly serve and protect its people." 

Maphosa said the ruling means that gun owners whose licences expired will be required to surrender their firearms and the SAPS has the statutory authority to demand this. 

"The decision by the SCA is a reminder that a gun owner must either apply in time for the renewal of his/her licence or dispose of the firearm before expiry of the licence," Maphosa said. 

"Failure to do so results in contravening the Act, which is a criminal offence. Gun owners know what is expected of them before expiry of the licence and they are provided with legislative means to fulfil that expectation."

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